Stanford Copyright
Reminder 2010-11

Using
Facebook as part of a class assignment, linking materials to a
course website, creating a multi-media presentation for a conference,
and even listening to music with friends are just a few examples
of everyday activities that have copyright implications. Since
copyright is so ingrained in daily campus life, it is important
for everyone in the Stanford community to have a working understanding
of copyright law, especially as it intersects with the use of technology
on campus. This document explains the fundamental elements of copyright
law and is intended to inform and train the University community
on copyright law.

Members
of the Stanford community who do not find answers to their questions
in this Reminder should feel free to contact Lauren Schoenthaler
at lks@stanford.edu in the
Office of the General Counsel for assistance.

File-Sharing and copyright law. Peer-to-peer
(P2P) file-sharing is fantastic legal technology that allows
individual users of the internet to directly exchange files
with each other. Problems arise, however, when file-sharing
programs are used to download and share copyrighted works without
permission from the copyright owner -- like software, music,
movies, TV shows, games and images. Specifically, unauthorized distribution of copyrighted material, including unauthorized P2P file-sharing, may result in civil and criminal liabilities in addition to university sanctions. Both the person who makes a copy of a copyrighted work available for unlawful download and the person who receives or downloads an illegal copy have violated copyright laws and Stanford policies. To be clear, even with regard to lawfully purchased content (such as a movie or a song), absent permission from the copyright owner (e.g., the record label or movie studio), it is illegal to allow others to make and keep a copy of that work.

Civil & Criminal File-Sharing Consequences. A copyright owner or an authorized agent may lawfully scan Internet traffic and send a complaint (under the Digital Millennium Copyright Act) to Stanford as the Internet Service Provider. Alternatively, a copyright holder may file a âJohn Doeâ lawsuit against the IP address and Stanford would have to provide the identity of the Stanford network user in response to a valid subpoena. Copyright damages are usually statutory â that is, determined not by actual damages but by statute. The minimum damages amount for unintentional infringement is $200 per copyright violation (e.g., file sharing one song or one movie) and willful violations can result in penalties of up to $150,000 per violation. 17 U.S.C. Â§ 504. File-sharing can also result in criminal prosecutions and sentences of up to 10 years in prison. 17 U.S.C. Â§ 506; 18 U.S.C. Â§ 2319. Every
year since 2003, copyright owners have brought claims against
individual Stanford students and staff members who have
engaged in unlawful file-sharing, and Stanford students
have collectively paid out an estimated $150,000 to resolve
their claims.

Stanford File-Sharing Consequences. Administrative
Guide Memo 62 (http://adminguide.stanford.edu/62.pdf),
prohibits the unlawful copying or distribution of copyrighted materials. Stanford follows up and responds to every copyright complaint. Do not share your passwords. You are responsible for what happens on your system.

Stanford's Copyright Complaint Policy for Students. Upon
receipt of a first copyright complaint, the Information Security
Office has an automated process to notify the student. The student
has to respond to the complaint within a short timeframe provided
in the notification, usually 2 days. In addition to responding
to the complaint, the student must take and pass a short quiz on
copyright law and file-sharing. If the student does not respond
within the allotted timeframe, the studentâs Internet connection
will be terminated and the student may be charged a $100 fee to
be reconnected to the Internet. Upon receipt of a second complaint,
a studentâs Internet connection may be terminated immediately.
A student may be charged $500 to be reconnected to the Internet.
The studentâs Residence Dean (undergrad) or Department Chair (graduate
student) may be notified about the incident. On a rare third complaint,
a studentâs Internet connection will be immediately disconnected.
The matter will be referred to Judicial Affairs, and the student
may be charged up to $1000 to obtain new Internet privileges. .

Stanford's Copyright Complaint Policy for Faculty
and Staff. When staff receive a first or second
complaint, the matter is referred to a supervisor and to
HR. Discipline up to and including termination may be imposed.
If a faculty member at Stanford receives more than one complaint,
the matter is referred to a Department Chair. Stanford will
likely terminate Stanford supported home DSL connections
on receipt of a second complaint. Upon receipt of a very
rare third complaint, administratively, Stanford terminates
Internet connectivity, including disabling the SUNet ID,
and the matter is referred on for discipline: Faculty are
referred to the Provost; and staff are referred to HR and
can expect to be terminated.

Technological Deterrents. Stanford has the following technology-based deterrents to combat unlawful file-sharing:

Packet-shaping software to limit the amount of P2P
traffic that can pass through the Stanford network; and

Free & Legal Entertainment on the Internet! There are multiple options to access free and legal music, TV and movies. The MPAA has an entire page listing many legal resources to access television and movies from your computer, including a listing to all major networks (which generally post new shows a day after original airing). See http://www.mpaa.org/contentprotection/get-movies-tv-shows.

Music: Pandora Free Internet Radio, http://www.pandora.com/#/ provides targeted music selections based on artist or
song preferences of the individual listener.

The Higher Education Opportunities Act of 2008 (HEOA). The HEOA required the Department of Education to develop regulations imposing obligations on universities relating to the effective enforcement of unlawful file-sharing on campuses. In October 2009, the regulations were finalized. See CFR 668.14(b)(30) and 668.42(a)(10), http://edocket.access.gpo.gov/2009/pdf/E9-25373.pdf. After review of these regulations, Stanford was satisfied that it already had in place each of the required mechanisms to deter unlawful file-sharing on campus. Stanfordâs full plan under the HEOA is located at, http://www.stanford.edu/dept/legal/Worddocs/heoa_compliance.pdf.

The Law. Copyright laws protect original
works of authorship. The Copyright Act gives the owner
of a copyright the rights to:

make copies,

distribute the work,

display or perform the work publicly,
and

create derivative works.

These exclusive rights are
subject to only limited exceptions.

In academia, the
five major exceptions to the copyright owner’s exclusive
rights are:

fair use,

the face-to-face teaching exception,

the distance-learning exception
(TEACH Act),

the first-sale doctrine,
and

the library and archives exception.

These five exceptions
are described below. Note that there
is no over-arching copyright exception for academic uses; academic
journals and text publishers expect royalties for use of their
content.

If No Exception, Seek Permission. Unless an exception to the copyright owner’s exclusive rights applies, you must obtain permission from the copyright owner to copy, distribute, display or perform a copyrighted work in any medium for any purpose.

Penalties. The penalties for copyright infringement
can be harsh. Under the Copyright laws, a court may award
up to $150,000 in civil statutory damages for each separate willful infringement;
copyright infringement can also be a crime under federal law. Under
Stanford policies, violation of copyright law may result in
administrative action, such as loss of networking privileges
and SUNet ID, or disciplinary action up to and including termination
for faculty and staff and expulsion for students. (See the Peer-to-Peer
File-Sharing section above for more information on copyright
penalties.)

Public Domain Works. Not all works enjoy copyright protection, and all works eventually fall into the public domain. Once a work is in the public domain it may be freely used without restriction (unless accepting access to a work was done under a license, in which case the terms of the license will control).

Domestic Works: There are some broad guidelines that works
first published in the U.S. before 1923 are in the public domain.
Domestic works published from 1923 through 1963 are protected
for 95 years from the publication date, if the copyright owner
renewed the work, or if the work remained protected by copyright
under another countryâs laws. Many works published from 1923 through 1963 did fall into the public domain. With a grant from the Mellon Foundation, Stanford University Libraries created the Copyright Renewal Database, http://collections.stanford.edu/copyrightrenewals, which searches renewal records of books published between 1923 through 1963 (although unfortunately the database does not capture information about the possibility of foreign copyright protection). Works published from 1963 through 1978 are protected for 95 years from publication date. Since 1978, works generally have copyright protection for the life of the author plus 70 years. For more information about when a domestic work enters into the public domain, please see the excellent chart by Peter Hirtle, http://copyright.cornell.edu/resources/publicdomain.cfm (published under a Creative Commons license).

U.S. Government Works: U.S. Government works (but not local or state government works)
never have copyright protection and enter the public domain
upon publication.

International Works: Like domestic works,
international works also fall into the public domain. By international
treaty, we need to respect works that remain in copyright in
foreign countries for the full extent of their copyright terms.
Many countries have copyright terms that run for the life of
the author plus 50 or 70 years. Unless there is specific knowledge
to the contrary with respect to a particular work, it is reasonable
to expect that works 150 years old and older have fallen into
the public domain.

Fair Use Defined. The Fair Use Doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners. It is not a blanket exemption. Instead, each proposed use must be analyzed under a four-part test.

Fair Use Applied.The four-part test to determine
fair use is necessarily vague and fact-dependent. In
some instances, two reasonable people could apply the four
factors to the same facts and reach opposite conclusions. If
the weighing and balancing analysis below does not provide
an answer, please refer to the Copyright and Fair Use Resources
section below.

Fair Use Four Factor Test.

1.What is the character of the use? Educational,
nonprofit and personal use is favored for fair use, while commercial
use is disfavored. However,
the fact that a use is educational or nonprofit in nature
does not in and of itself mean the use is necessarily fair. More
important than the educational or nonprofit nature of the
use is whether the use is “transformative” in
nature. A use is transformative if it builds upon,
criticizes, comments on, parodies or otherwise adds something
new to the original work. Put another way, the question
is whether the new use, in the words of the Supreme Court,
merely “supersedes the objects of the original creation,
or instead adds something new, with a further purpose or
different character”. Campbell v. Acuff Rose
Music, 510 U.S. 569 (1994) (internal citations omitted).

2.What is the nature of the work to be used? Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to require permission.

3.What is the amount and substantiality of the portion to be used? Using only a small portion of a copyrighted material tips towards fair use, while using large portions indicates a need for permission. Be careful with this factor, however; a court has held that copying only 5% of a book was not fair use.

4.Will the use negatively affect the value of the copyrighted material? Where a work is available for purchase or license at a reasonable cost, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of “authorized” copies) would likely be unfair. If only a small portion of a work is to be copied, and one would likely forego using the portion if permission were required, then the balance tips towards fair use.

Good Faith Fair Use Defense. Even if a copyright infringement occurs, a court may refuse to award damages if the infringer reasonably believed that the use was fair.

Copyright law provides that the owner of lawfully obtained
copyrighted content may dispose of that copy (lend, rent, sell,
give-away, or throw away) without permission of the copyright
owner. Under the first-sale doctrine, a faculty member
could lend out his copy of a book or a DVD to students in his
class. This exception does not apply to recorded music,
and many software licenses prohibit the use of the first-sale
doctrine. Additionally, note that posting digital content
on the web does not fall within the first-sale doctrine as
display is one of the exclusive rights of a copyright holder. (Providing
a link to the copyright owner’s website is lawful and
recommended.)

Performance or Display of Copyrighted Materials During
Face-to-Face Teaching. The Copyright Act provides
an exemption to perform or display copyrighted materials
during face-to-face teaching activities. Such use does
not require the author’s permission. For example,
it is permissible to show a full-length motion picture in
class as part of the classroom learning. Note, however,
that this exemption does not permit copying or distributing
a work -- only displaying or performing it during class time.

Distance Learning and the TEACH Act. The Teach Act extends in a limited way the Face-to-Face Teaching exemption to mediated distance learning courses. The TEACH Act is fairly narrow, and it is rarely applicable at Stanford, as Stanford has very few mediated distance online courses. (This Act does not apply to iTunes U courses; faculty will need to rely on the fair use doctrine for such courses.) When the Act does apply, transmissions of performances of entire non-dramatic works and reasonable and limited portions of any other performance or audiovisual work may be made without obtaining permission from the copyright owner. To take advantage of the Act, the following strict requirements must be observed:

The performance or display must be:

A regular part of mediated instructional activity;

Made by, at the direction of, or under the supervision
of the instructor; and

Directly related and of material assistance to the content
of the course.

Further, the following technological restraints must be in effect:

The content must be accessible only to those students who
are enrolled in the course;

The content must be accessible only for the duration of a
class session;

To the extent technologically possible, the content must be
protected from further distribution (“downstream-controlled”);
and

To the extent technologically possible, the content must not
be subject to retention by students.

All material displayed under the TEACH Act must contain the following notice:

The materials on this course website are only for the use of
students enrolled in this course for purposes associated with
this course and may not be retained or further disseminated. The
materials on this course website may be protected by copyright;
any further use of this material may be in violation of federal
copyright law.

You may digitize works for display from an analog format provided that:

No existing licensed digital copy is available for use at
the University; and

Only the portion needed for transmission is digitized (i.e.,
only a reasonably limited portion).

Note: The TEACH Act does NOT permit:

Uploading material such as textbooks, coursepacks or other
resources typically purchased by students to review outside
of the classroom. (The TEACH Act only applies to works
that an instructor would show or play during class. Any
uploading of material for (non-classroom) study purposes must
comply with the copyright laws, including fair use principles);

In General. Digitally created works and analog works transformed into a digital format and placed on the Internet are protected by copyright laws.

Exercise Caution When Downloading. Be
mindful of copyright/fair use principles when downloading
material from the Internet. Just because a work is
posted on the Internet does not mean that the owner of the
copyright in it has given you permission to make copies or
distribute the work to others. Note too that material
may have been placed on the Internet without the author’s
permission

Exercise Caution When Uploading. Be especially
careful of copyright/fair use principles when uploading material
to the Internet. It might be perfectly acceptable under
the fair use doctrine to include several graphs from various
articles to be included in a paper written for class; it is
probably not a fair use however, to publish those graphs to
the world through a posting of the same paper on the Internet.

Protect the Copyright. Electronic distribution
of a copyrighted work should state: This
work is protected by copyright laws and is provided for educational
instruction only. Any infringing use may be subject to
disciplinary action and/or civil or criminal liability as provided
by law.

DMCA & Access Circumvention. The Digital Millennium Copyright Act of 1998 (17 U.S.C. Â§ 1201(a)(1)) prohibits the circumvention of technological measures that control access to copyrighted works (i.e., digital rights management technologies). Until this year, that prohibition even prevented circumventing such measures to access only a small portion that would be justified under the Fair Use Doctrine (e.g., a clip of a film). In 2010, the Librarian of Congress has recognized that circumvention to access small portions for educational uses by college and university professors and students is acceptable, and will no longer be subject to the prohibition.

Link to it! It is generally acceptable to
point others to material posted on the Internet by providing
a link to the website. The link itself is not a copy
of the content -- it is merely a direction to content. Because
the link-provider is not making any copies, linking is generally
outside the boundaries of copyright law. The exception
is that it could be contributory infringement to provide a
link to a website knowingly hosting copyrighted material unlawfully. So,
link to publishing sources directly, such as journals or newspapers.

Faculty Initiated Use of Online Collaboration Tools
& Resources,such as social media sites,
blogs, wikis, etc.
There is no question that for certain courses the use and reliance on websites and collaboration tools will enhance the educational experience. It is preferable for such tools to be hosted by Stanford to reduce concerns regarding content ownership, the confidentiality of student information, and the security of third-party websites. Third-party tools and websites can be appropriate to use where there is no comparable Stanford tool available. Many service providers, however, require individual users to sign up for an account and agree to terms of use in exchange for use of the services. Faculty should review terms of use, and pay attention to content ownership concerns (e.g., are students required to give away or license their copyright interests in student-generated content to the service?), privacy concerns (e.g., can student control the distribution of their own student-generated content?) and use of the content for non-Stanford purposes (e.g., will the service provider keep a copy of the student-generated content for data-mining or other non-Stanford related purposes?). Faculty should notify students in syllabi when third-party tools will be used in a course, and should alert students to the terms of use. Faculty should also work with students who are not comfortable signing on to particular third-party terms of use, including, where possible, enabling a student to participate in the course without relying on the third-party tools. For more information, see, http://www.stanford.edu/group/security/securecomputing/Restricted_Data_Handling_FAQ.html#Q7

Faculty Initiated Capture & Broadcasting
of Courses. Before
recording and broadcasting a Stanford course, faculty must
consider a number of issues. These include intellectual property
and privacy issues, and Stanford copyright and videotaping
policies. Certain classes may not be appropriate for public
consumption. A few examples include classes that rely on substantial
in-class use and display of third-party copyrighted content;
classes involving the discussion of identifiable patients or
research subjects; and classes requiring substantial class
participation by students who may be made uncomfortable by
the idea that their thoughts will be broadcast to the world.
Students must have advance notice that a course will be recorded
and broadcast; an area of the room should be set aside for
students who wish to remain off-camera; faculty should make
themselves available to answer student questions off-camera
(e.g., during office hours). There are several groups that
faculty may work with to determine if it makes sense broadcast
a particular course or lecture, including Stanfordâs iTunes
U at http://itunes.stanford.edu/contribute/,
Jeremy Sabol, jsabol@stanford.edu at the Center for Teaching
and Learning (CTL), and Lauren Schoenthaler, lks@stanford.edu,
in the legal office.

Student Intiated Use of Recording Devices
in Class. Students may not record (audio and/or video)
lectures absent the express permission of the faculty leading
the course, and, if applicable, guest speakers. When
permission is granted, students agree to use such recordings
only for personal use and agree not to post such recordings
on the Internet, or otherwise distribute them. Students
needing recordings of lectures for disability-related reasons
should contact the Office of Accessible Education, http://studentaffairs.stanford.edu/oae/students.

Electronic CoursePacks and CourseWork Software.
Most courses use a central website portal for access to class
information and reading lists. Faculty and students may post
or link to copyrighted materials on password protected course
sites only in compliance with copyright principles. Prior to
digitizing copyrighted materials, faculty should review Stanford
University Librariesâ (SUL) electronic holdings to determine
if a pre-existing license for the content already exists. SUL
has secured licenses to tens of thousands of online works,
and many other works are available electronically to the public
through licenses, such as Creative Commons licenses. Additionally,
please see the Public Domain section for references to a few
of the excellent digitization projects that are making public
domain content available online. Similarly, instead of creating
a digital copy of a work, if possible, faculty members are
encouraged to provide links to the content-ownerâs website,
such as to a news service. If these options are not available,
digitizing content is acceptable in limited circumstances.
The faculty member must consider whether the use is a fair
use -- such as a single, recent news article, or a few images
-- or whether permission is necessary from the copyright owner
-- such as a few chapters from a textbook. A sound guideline
is that if copyright clearance were necessary to place something
into a coursepack, then copyright clearance is necessary to
place it into a class website. The preferred online course
management system at Stanford is CourseWork, which is located
at http://coursework.stanford.edu/. CourseWork provides a web-based
document bank and password-protected access system to course
participants only.

Conference on Fair Use Guidelines for in-class presentations: “Educators
may incorporate portions of lawfully acquired copyrighted works
when producing their own educational multimedia programs.”

No more than 10% or 3 minutes (whichever is less) of motion-based
works;
No more than 10% or 30 seconds (whichever is less) of a song
or video;
No more than 10% of a text; and
Entire photographs or illustrations may be used provided that
no more than 10% or 15 images
(whichever is less) comes from any one source.

For in-class presentations that will not be posted on the
public Internet, these guidelines are intended to be suggestions
and are not set in stone. But, for any multi-media presentation
that is to be posted onto the Internet or sold commercially,
these guidelines do not apply. Posting to the Internet
even a single copyrighted image within a presentation, such
as a political cartoon, may not be a fair use.

Filing a Course Reserve.Some libraries at
Stanford will not accept multiple photocopies of copyrighted
materials needed for course reserves without first having permission
from the copyright holder. Other libraries on campus
will accept a limited number of photocopies for course reserves. Consult
individual libraries for their policies. The Stanford
University Libraries’ policy on course reserve is located
at http://library.stanford.edu/services/course_reserves/index.html.

Allow Several Months for Course Reserve Permission. Note that filling course reserve requirements may take two to three months before the quarter begins if the library does not already have a copy of the publication and copyright permission is needed.

In General. If an exception (such as fair
use, the library exception, face-to-face teaching activities
or distance education) is not clearly available, permission
to use a copyrighted work must be obtained from the owner of
the copyright holder. A request to use copyrighted material
usually can be sent to the permission department of the publisher
of the work. Assume four to six weeks for a request to
be processed. Permission requests should contain:

1. Title, author and/or editor, and edition.
2. Exact material to be used.
3. Number of copies to be made.
4. Intended use of the material, e.g., educational.
5. Form of distribution, e.g., hard copy to classroom, posted on Internet with password protection.
6. Whether material is to be sold (e.g., as part of a coursepack).

Journal Articles. The Stanford libraries have blanket copyright permission from many journals. Before forwarding a request for an article, check with the appropriate library to see if there is a blanket permission covering the article you would like to use.

Copyright Clearance Center (CCC). The CCC
is able to give permission to use a wide number of materials
for a fee. Please contact CCC at http://www.copyright.com or
(978) 750-8400.

Evidence of Permission. Written permission should be obtained and kept by the academic department. If oral permission only is obtained, a written record should be kept of the oral permission.

Research Policy Handbook Section 5.2. This Copyright Reminder primarily addresses the use of third party copyrighted content. Stanford University Research Policy Handbook Section 5.2 governs the creation of copyrighted works at Stanford and by Stanford faculty, staff, students and affiliates. The general principle states:

Copyright is the ownership and control of the intellectual property
in original works of authorship which are subject to copyright
law. It is the policy of the University that all rights
in copyright shall remain with the creator unless the work is
a work-for-hire (and copyright vests in the University under
copyright law), is supported by a direct allocation of funds
through the University for the pursuit of a specific project,
is commissioned by the University, makes significant use of University
resources or personnel, or is otherwise subject to contractual
obligations.

Stanford generally* does not mandate any copyright position
that its community members should take when publishing articles
or books. This section is provided as information to
our community.

(*The School of Education has an Open Access Initiative
described below.)

Publishing Information for research not supported
by NIH. The common practice in academic publishing is for the author to assign copyright in the article or book to the publisher. Once an author no longer owns the copyright, the author can no longer control what use is made of the article. Before assigning copyright in an article, Stanford authors should be sure to understand what uses can be made article after the article is published. Consider if these options may make sense:

Assigning copyright to journal, with a license back
from the journal to the author enabling the author to:

(1) post
on an institutional website in a PDF format
(2) make derivative works
(3) make copies for educational purposes
(4) allow others to make copies for educational
purposes
(5) same rights for Stanford/originating institution

Publishing Information for research supported by
NIH. In
2008 the National Institutes of Health implemented a Public
Access Policy, which requires that a digital copy of all
research publications supported by NIH funding be submitted
to PubMed Central, an online public repository, within 12
months of the original publication. More
information about the NIH policy can be found on the NIH’s
website at http://publicaccess.nih.gov/.
Stanford's Lane Medical Library also offers a "nutshell"
summary of requirements: http://lane.stanford.edu/help/openaccess/nihpolicy.html.

The School of Education Open Access Initiative. In
June 2008, the School of Education faculty passed an Open
Access Initiative in which faculty members from the school
are asked to add an addendum to publishing contracts enabling
the author to attach a Creative Commons Attribution-Noncommercial
License to all publications so that they can be placed in
a Stanford repository. Faculty members may seek a waiver
of this policy from the Dean’s office. For more
information, see http://ed.stanford.edu/faculty-research/open-archive/oapolicy.

Stanford's Copyright Ownership Policy. The
University's copyright policy establishes that all rights
in copyright, regardless of their form of expression, remain
with the creator, except in specified cases where law or
University policy require otherwise. For more information,
please refer to the policy at http://www.stanford.edu/dept/DoR/rph/5-2.html.